Legal counsel Rustina Haryati conveying the petition on Law No. 18 of 2003 on Advocates, Tuesday (10/3/2023). Photo by MKRI/Panji.
JAKARTA (MKRI) — Alvin Lim, an advocate, challenges the Elucidation to Article 16 of Law No. 18 of 2003 on Advocates. The preliminary hearing for case No. 113/PUU-XXI/2023 was held on Tuesday, October 3, 2023 in one of the panel courtrooms. The Constitutional Justices Arief Hidayat (panel chair), Suhartoyo, and Daniel Yusmic P. Foekh presided over the hearing.
The Elucidation to Article 16 of the Advocate Law reads, “Advocates cannot be prosecuted either civilly or criminally in carrying out their professional duties in good faith for the defense of clients in or out of court.”
The Petitioner’s legal counsel Rustina Haryati conveyed that the Petitioner is an advocate who has the right to immunity due to the enactment of Article 16 of the Advocate Law. “When performing their duties, advocates certainly could potentially conflict with the Police and the Prosecutor’s Office. However, due to the duties imposed on the Petitioner, he was declared a suspect by the Police with report No. LP/B/0536/IX/2022/SPKT/BARESKRIM POLRI on September 19, 2022 on allegation of defamation and/or slander and/or issuing announcement that can cause chaos among the public and/or broadcasting uncertain news or excessive or incomplete news based on Article 45 paragraph (3) in conjunction with Article 27 paragraph (3) of Law No. 19 of 2016 on the Amendment to Law No. 11 of 2008 on Electronic Information and Transactions and/or Article 14 paragraphs (1) and (2) and/or Article 310 and/or Article 311 of the Criminal Code,” Rustina said.
She further explained that the Petitioner had carried out his profession in good faith to defend, assist, and provide legal assistance outside the court, in this case, by delivering facts through the media of what his client had experienced. However, due to the report, he was declared a suspect. This raised several issues, impaired the honor of the advocate profession, deprived the Petitioner of the right to immunity as an advocate, and caused legal uncertainty on the advocates’ immunity in carrying out their profession during which they can still be criminally charged.
Right to Immunity Outside Court
In his petition, the Petitioner states that advocates cannot be civilly or criminally charged while on duty based on authorization and while acting in the client’s interests, both in court and out of court, but are restricted by “good faith” in their actions. In reality, the right to immunity is actually more necessary when advocates provide legal services out of court, which the Elucidation to Article 16 of the Advocate Law has not regulated. So, it should be added to the relevant article.
The Petitioner believes out-of-court legal actions by advocates in order to defend, maintain, and protect their clients’ rights are actually more vulnerable to criminal charges and civil lawsuits for “unlawful acts,” which can be in the form of subpoena, mediation, or press release. It is currently common for advocates to provide statements to the media on behalf of their clients, such as explaining the clients’ losses, which affect the progress of their cases.
The vagueness of the a quo article may result in potential criminalization of advocates while on duty and restrictions on clients’ access to justice and legal assistance from advocates. This also applies to advocate organizations in providing defense to clients in connection with their interactions with other law enforcers.
Thus, the Petitioner argues, the Elucidation to Article 16 of the Advocate Law must be given a clear, complete, and comprehensive interpretation that civil and criminal prosecution of advocates, either in or out of court, is impossible, including legal actions interpreted in the elucidation to the article to ensure legal certainty and justice, as well as a sense of security and protection from fear of doing or not doing something.
Therefore, in the petitum, the Petitioner requests the Court to declare Article 16 of the Advocate Law unconstitutional and not legally binding insofar as it is not interpreted as “Advocates cannot be prosecuted either civilly and/or cannot be processed by criminal law in investigation stage while carrying out their professional duties in good faith for the benefit of defending clients in and outs of court.”
The Petitioner requests that the Elucidation to Article 16 of the Advocate Law reads, “‘Good faith’ shall mean carrying out professional duties for the sake of upholding justice based on the law to defend the interests of clients. A ‘court hearing’ shall be defined as a hearing at any level of court in any judicial environment. ‘Out of court hearing’ shall be defined as any legal action out of the court such as sending a subpoena, conducting mediation, giving a press release either in writing, electronically, or through online media.”
Justices’ Advice
Responding to the Petitioner’s petition, Constitutional Justice Suhartoyo advised him to emphasize his legal standing by briefly elaborating the case to strengthen his argument on the charge of Articles 45 and 27 of the EIT Law. “Do not just explain that based on the determination of suspect by the investigator or the Police, but please elaborate a little on the Petitioner’s.... At least, [the Court] will describe whether this is actually related to his profession or only daily social interaction,” he explained.
Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh asked the Petitioner to re-examine the Constitutional Court’s legal considerations on the constitutionality of Article 16. Next, Constitutional Justice Arief Hidayat said that the Petitioner should anticipate the constitutional justices. “If [you] were the justices, would this petition be granted or not?” he asked.
Before adjourning the hearing, Constitutional Justice Arief Hidayat informed the Petitioner that he would have 14 workdays to revise the petition and to submit it to the Registrar’s Office no later than Monday, October 16, 2023.
Author : Utami Argawati
Editor : Nur R.
PR : Andhini S.F.
Translator : Tahlitha Laela/Yuniar Widiastuti (NL)
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
Tuesday, October 03, 2023 | 15:07 WIB 116